Court of Appeals of Indiana | Memorandum Decision 18A

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT R. Brian Woodward Appellate Public Defender Crown Point , Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA
John Fitzgerald Johnson, Jr. , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. November 28, 2018 Court of Appeals Ca se No. 18A

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- 1682 Appeal from the Lake Superior Court The Honorable Clarence D. Murray , Judge Trial Co urt Cause No s . 45G02

- 1602

- F2

- 3 45G02

- 1606

- F3

- 21

Bradford , Judge .Court of Appeals of Indiana | Memorandum Decision 18A

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# Case Summary

[1] In April of 2018, pursuant to a plea agreemen t, John Fitzgerald Johnson, Jr. , pled guilty to one count of Level 5 felony battery by means of a deadly weapon and two counts of Level 5 felony robbery in Lake County. I n exchange , the State agreed to dismiss all remaining counts . The trial court sentenced Johnson to fifteen years of incarceration. Johnson contends that t he trial court abused its discretion by finding his eleven victims, who were listed in the stipulated factual basis, to be an aggravating circumstance. Further, Johnson contends that h is sentence i s inappropriate in light of the nature of his offenses and his character. Because we disagree, we affirm.



# Facts and Procedural History

[2] On January 23, 2016, Johnson and N’Vaun Lewis arranged to meet with Robert Wisniewski about Johnson’s truck , which he had listed for sale on Craigslist. When Wisniewski and his father arrived, Johnson demanded that they hand over money and other prope rty or be shot

. Johnson and Lewis took Wisniewski’s mobile telephone and fled. On February 2, 2016, Johnson and Lewis again arra nged a meet ing about Johnson’s truck, this time with C ain Herrera. When Herrera arrived accompanied by his father and brother, Johnson and Lewis rushed the ir vehicle. As Herrera and his family drove away, Johnson pulled out a handgun and fired multiple close

- range shots at the vehicle, one striking Herrera in the face. Herrera ’s jaw was fractured, he lost teeth and part of his tongue, and he had to attend speech therapy to re learn to talk and eat

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The State charged Johnson, in cause number 45G02

- 1602

- F2

- 3 (“Cause No. F2

- 3”), with one count of Level 2 felony at tempted robbery resulting in serious bodily injury, two counts of Level 3 felony armed robbery, and two counts of Level 3 felony attempted robbery.

[3] On April 14, 2016, Brandon Arizpe agreed to meet Johnson to purchase a tel evision that Johnson had listed for sale on Craigslist. When Arizpe arrived, Johnson demanded money and began making threats , including telling Arizpe that he had a gun. Johnson ultim ately took money, two mobile telephones , and a handgun from Arizpe. On June 17, 2016, the State charged J ohnson, under cause number 45G02

- 1606

- F3

- 21 (“Cause No. F3

- 21”), with two counts of Level 3 felony armed robbery and two counts of Level 3 felo ny criminal confinement.

[4] Pursuant to a plea agreement, on April 3, 2018, Johnson pled guilty in amended Cause No. F2

- 3 to Level 5 felony battery by means of a deadly weap on and Level 5 felony robbery and in amended Cause No. F3

- 21 to Level 5 felony robbery. In exchange, the State agreed to dismiss all remaining counts , and Johnson consented to the stipulated factual basis which was submitted to the trial court by the State

. On June 1, 2018, the trial court sentenced Johnson to consecutive five

- year terms of incarceration on each count, for an aggregate
sentence of fifteen years. The trial court concluded that the aggr avating circumstances outweighed any mitiga ting circumstances , most notably Johnson’s criminal history, the number of victims, and the nature and circumstances of the offenses

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# Discussion and Decision I. Abuse of Discretion
[5] Johnson contends that the trial court abused its disc retion by improperly finding his eleven victims to be an aggr avating circumstance at sentencing. We review the trial court’s finding of an aggravating circumstance for an abuse of discretion. Spiller v. State, 740 N.E.2d 1270, 1274 (In d. Ct. App. 2001) , trans. denied

. “An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court or when the court misinterprets the law.” Johnson v. State , 36 N.E.3d 1 130, 1133 (Ind. Ct. App. 2015), trans. denied

.
[6] Johnson specifically assert s that the trial court abused its discretion by considering his eleven victims to be an aggravating circum stance when only nine where included in the stipulated factual basis and th e trial cou rt failed to establish that each of those victims was harmed . Both of Johnson’ s assertions fail. First, the stipulated factual basis did list eleven different victims. Moreover, the trial cour t did not need to establish that a particular harm occurred to each person because Johnson stipulated that these eleven named persons were victims . Johnson has failed to establish that the trial court abused its discretion by finding the eleven victims of his crimes to be an aggravating circumstance.Court of Appeals of Indiana | Memorandum Decision 18A

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## II. Appropriateness
[7] Johnson contends that his fifteen

- year sentence is inappropriate

. We may revise a sentence if, “after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offens e and the character of the offender.” Ind. Appellate Rule 7(B). “Sentencing is principally a discretionary function in which the trial court’s judgment should receive considerable deference.” Cardwell v. State , 895 N.E.2d 1219, 1222 (Ind. 2008) (internal c itations omitted). The defendant bears the burden of proving that his sentence is inappropriate in the light of both the nature of his offense and his character. Gil v. State , 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013). Johnson pled guilty to one count of Level 5 felony battery by means of a deadly weapon and two counts of Level 5 felony robbery and received a sentence of five years executed for each conviction, to be served consecutively, which is above the advisory , but below the maximum. See Ind. Code § 35

- 50

- 2

- 6.

[8] The nature of Johnson’s offenses does not support a reduction in his sentence. Johnson carefully planned to lure his victims to a place where he would rob them and battered one in a far more brutal manner then was necessary to sustain his convi ction

. Moreover, by committing multiple crimes against multiple victims, the trial court was justified in imposing consecutive sentences. See O’Connell v. State , 742 N.E.2d 943, 952 (Ind. 2001) (emphasizing that multiple crimes or victims constitute a vali d aggravating circumstance for imposing consecutive sentences).Court of Appeals of Indiana | Memorandum Decision 18A

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[9] Johnson’s character also does not support a reduction in his sentence. The thirty

- two
- year - old Johnson has a history with the criminal and juvenile justice system s that dates back to an arrest for truancy at age fifteen. As a juvenile, Johnson was adjudicated delinquent for what would be Class D felony theft and Class A misdemeanor conversion if committed by an adult. As an adult, Johnson has convictions for Class A misdemeanor possessio n of marijuana , Class B misdemeanor visiting a common nuisance, and Class C felony criminal recklessness . Johnson has also violated parole. At the time of sentencing in this case, Johnson had pending charges in Marion Cou nty for Level 5 felony possession o f a handg un. Despite his many contacts with the criminal and juvenile justice system s, Johnson has been unwilling to conform his actions to societal norms. Johnson has failed to establish that his sentence is inappropriate.

[10] The judgment of the trial court is affirmed. Bailey, J., and Mathias, J., concur.